There is a lot referenced in the court transcripts from the Motions in Limine, so if you don't yet know what they were about, please click the links at the bottom of this bottom of this post to familiarize yourself with them.

The court hearing was a mixed bag for both Interplay and Bethesda. Neither company was a clear winner or loser, as both had things approved and denied.

Here is the main decision (ignore the numbers..they are line numbers from the transcript):

1 THE COURT: Okay. All right. With regard to2 Bethesda's Softworks' motion. The first request is that3 I hold Interplay Entertainment to have the burden of4 proof on three separate or three potentially separate5 issues. One, that Interplay has a trademark and6 copyright license; that Interplay commenced full scale7 development by April 4, 20-- I just said seven, but it8 could have been nine. And second -- and third, that9 Interplay had secured financing also by April of 2009.10 The parties, I think, seem to agree that the party11 asserting a license wants the party owning copyright and12 the trademark rights to have shown ownership and copying13 that the party asserting license has the burden of14 proving the license. The parties agree there is a15 document called Trademark License Agreement which at16 least initially both sides asserted valid and17 appropriately enforced. The question arises as to what18 -- how to approach the problem as of April 4th 2009.19 My conclusion is that the license was granted for20 an initial period of two years. And while Bethesda is21 calling this a "condition precedent" using contract22 terms, I think more appropriately it is a condition to23 the continued existence of the grant of the license.24 This is a condition that automatically reverted the right25 to Bethesda unless the condition was satisfied.1 And, thus, I think it does come down to2 Interplay's burden, at least of production, with regard3 to the satisfaction of the condition in the grant. That4 is, that it will be the burden on Interplay Entertainment5 to come forward with evidence that it satisfied the6 conditions in the TLA for a license as of April 4th 2009.7 This is an express condition in the documents. It is one8 the treatise writers, at least, talk about as one that is9 -- results in an automatic rescission or reclamation of10 rights if a grantee fails to perform the conditions and,11 thus, it would, if they can't prove to the satisfaction12 -- produce evidence of the satisfaction of the condition,13 meaning they have not satisfied their burden of14 production with regard to having a license.15 I say "burden of production" because there is at16 least one commentator that talks about separating out17 perhaps a burden of persuasion from a burden of18 production. It's "Patree" or "Patri" on Copyright. And19 I'm not foreclosing the possibility, assuming that20 evidence is in equipoise, which it rarely is, of deciding21 that while Interplay has the burden of production on the22 issue of compliance with the condition, that it may23 ultimately remain Bethesda Softworks's burden of24 persuasion.25 I'm not -- the parties haven't -- you talked in a1 uniform way about burden of proof, which is perhaps a2 combination of both a burden of production and a burden3 of persuasion. And so I think it only necessary at this4 point to let you know that the burden of production of5 evidence on all of these issues will apply to Interplay6 Entertainment. The reason I asked you the question at7 the beginning about whether there were any trademark or8 copyright claims being asserted by Bethesda Softworks9 before April of 2009 was that at -- if there were, that10 potentially was raising a scope issue as opposed to the11 existence issue about the license.12 And so let me be clear that when we're talking13 about whether there was a trademark and/or copyright14 license post-April 2009, the burden of production is on15 Interplay Entertainment. If we are litigating any16 question as to the scope of any license pre-April 2009,17 then it's likely a scope issue but only because the18 parties, at least initially, agree that there is a TLA19 in place. So, that's my ruling with regard to the first20 issue.21 The second issue is articulated as precluding22 Interplay from offering parol evidence to support its23 defense that the TLA granted a copyright license. This24 would only come into play if in fact there was a TLA of25 some sort that continued in existence if we're dealing1 with the post-April 2009 time frame, if you're2 understanding how I'm proceeding here.3 So, if there is no license at all then, of course,4 there is no looking at an April 11 date. At this stage5 I'm really not prepared to rule in an almost summary6 judgment-type scenario where I will come out. So I am7 not going to preclude Interplay from putting on what is8 being characterized as parol evidence in hard and fast9 terms. That does not mean that I have decided that it is10 relevant to any contractual interpretation issue that I11 need to resolve. It's simply that in a bench trial I am12 electing to defer any ultimate decisions about that legal13 question. If this were a jury trial, I might have to14 take a different approach.15 The third issue is whether Interplay should be16 precluded from arguing that it had satisfied full scale17 development and minimum financing. Again, I'm not, at18 this juncture, going to grant any summary judgment in the 19 guise of a motion in limine though. Depending on whether20 they come forward with some evidence or not, they can21 argue that it does or that I should find that it does22 satisfy those conditions. But the burden is on Interplay23 to come forward with some evidence.24 Now, if there were rulings made during discovery25 that preclude going beyond what was produced at1 discovery. That's a different matter, and it's not my2 understanding that's really at issue. But, rather, what3 Bethesda Softworks was seeking here was almost a partial4 summary judgment, and that I'm not going to enter at this5 point.6 Finally, though, Interplay is seeking only in7 their pre-trial order to amend the pleadings to assert an8 affirmative defense of mistake. Here, what I heard from9 Mr. Gersh today differs from what was in his response to10 this issue in the papers. Here you're saying it's11 nothing new in terms of what the meaning might be of full12 scale development and secured financing. In the response13 to this motion, you point to language in the first14 amendment answer and counter-claim dealing with, in15 essence, additional trademarks and copyrights in terms of16 what you were permitted to do. Because, at the time, I17 thought this was stemming from the dispute as to whether18 assuming there was a license to use the Fallout19 trademark, what that meant. Did this have to be an MMOG20 with the name "Fallout" but look like, whatever, Mickey21 Mouse or some other character. And today I'm hearing a22 different perspective all together.23 In any event, "mistake" is an affirmative defense.24 It must be pled with particularity; it has not been. It25 isn't even proposed to be in the response to the motion1 in limine, and I'm not going to entertain any amendment2 to the defenses by way of a mistake. What I thought I3 heard Mr. Gersh talking about today is that the true4 battleground is whether there is evidence of full scale5 development or the proper financing, but it's far too6 late for Interplay to be contending that the TLA itself7 should be rescinded, in essence, because of a mutual8 mistake way back in 2007.9 They have failed to articulate in any sufficient10 manner what that might have been, and it's far too late11 to infuse into this case a totally different issue. So,12 we won't be amending the answer with the affirmative13 defense of "mistake." Okay.

As for Interplay's Motion to have Thomas Bidaux barred from testifying:

25 THE COURT: Okay. Then, first of all, with regard1 to the absence of a deposition, I am finding that2 Interplay had an opportunity to take this deposition if3 it wished, and I am not going to preclude Bethesda from4 calling the witness on that basis. I find that I can't5 rule, based on the current record at least, that6 Mr. Bidaux will not have information that will be of7 assistance to the trier of fact, and I'm not going to8 preclude his testimony on that ground.9 On the other hand, in reading the report, he10 doesn't mention that he's seen material concerning what11 Interplay had done. Instead, his report is based12 entirely on his own experience, and he will not be13 permitted to opine at all on whether Interplay had or had14 not reached the -- satisfied the conditions in the TLA.15 Rather, he is going to be permitted to testify as16 proposed in his report as to what an MMOG is and entails17 and nothing specific to this case, other than that18 background education for the trier of fact which is going19 to be me.

To summarize the above and other little bits from the hearing:

1. The burden of proof is on Interplay to prove 3 things. A. it has a trademark and copyright license B. it was in full scale development C. It had secured funding of 30 million.2. Interplay is not precluded from presenting parole evidence.3. Interplay is not precluded from presenting evidence showing minimum financing and full scale production.4. Affirmative defense of mistake will not work for Interplay.5. Bethesdas witness can be at the trial, but can only testify as to what an mmo is and what it entails...he cannot comment on what Interplay has done. 6. Trial will be at 9:30 A.M. on Dec 127. Interplay thinks it will take 2 to 2 1/2 days for the entire trial.

So stay tuned to Duck and Cover for the latest!

UPDATE: Thurs, 08 DEC 03:45 GMT: I have the results of the assorted pre-trial motions in limine! It's a mix of wins and losses for both Interplay and Bethesda. I will be posting my writeup on them later today.

The big Bethesda v. Interplay court hearing that we've been reporting about took place today. It was, unexpectedly, a telephonic hearing rather than a standard in-court situation. Today's hearing was mainly about Interplay and Bethesda's separate Motions in Limine. We should find out soon what issues will be allowed and denied when the main trial takes place. I'm putting this post at the top and will keep updating it as more info becomes available. Right now, all we have is the following: